Does the Constitution Require That the Vice President Preside at His Own Impeachment Trial?

Over at the Originalism Blog, Mike Ramsey has a post discussing the question of who presides at the impeachment trial of the Vice President. The Constitution “expressly provides that the Chief Justice, not the Vice President, presides over the Senate’s trial of an impeached President (even though ordinarily the Vice President presides over the Senate). Obviously this exception is made because the Vice President has a personal interest in the question whether the President is removed from office, as the Vice President would then become President.”

But does the Vice President preside at his own impeachment trial, as the constitutional text seems to indicate? Ramsey disagrees with Akhil Amar, who concludes based on an unwritten principle, that the Vice President doesn’t get to decide. Ramsey argues that we should acknowledge that the Framers made errors and we are stuck with them (as an interpretive matter at least).

I don’t agree with Ramsey here. My own theory of constitutional interpretation, named original methods originalism, holds that to determine the original meaning of the Constitution we should employ the interpretive rules that the Framers’ generation would have employed. And one of the widely accepted rules at the time was the absurdity rule, which held that one can depart from the text to avoid an absurdity. Having the Vice President preside at his own trial would be an absurdity.

What is an absurdity for the Constitution? Chief Justice Marshall provided what I regard as the best statement in Sturges v. Crowninshield, 17U.S.122, 202 (1819):

Although the spirit of an instrument, especially of a constitution, is to be respected no less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.

Marshall, I think, is being a bit colorful here, but the point is clear: to infer that the Framers did not intend what they said, one would have to conclude that nearly everyone would agree that the Vice President should not be able to preside at his own impeachment trial. (The question is not whether everyone would agree that the plain language should be departed from; rather, that they should agree that it would not make sense to have the Vice President preside at his own trial.)

The requirement that “all mankind, without hesitation, unite in rejecting the application” serves an important function. If one is going to depart from the plain meaning, then one should have tremendous confidence that the enactors would not have desired that plain meaning. This high degree of support for not following the plain meaning provides that confidence. Put differently, the high degree of support prevents judges from departing from the plain meaning to support their own policy preferences when other people in the society would disagree with them.

Given this definition of absurdity, I believe that people at the time would have nearly universally opposed having the Vice President preside at his own impeachment trial. Not only does it seem obviously inappropriate, but there was also in the law a common maxim that no man should be a judge in his own case.

One doesn’t have to believe in an unwritten Constitution to conclude that the Vice President should not preside at his own trial. Nor does one have to believe that the Framers made no mistakes in the Constitution. But when one of the textual mistakes is an absurdity, one can depart.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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I’m not sure whether recourse is needed to an extra-textual absurdity rule. The word “president” comes from the verb preside, which, in turn, is derived from the Latin pre+sidere, that is, to sit in front of. If the Vice-President is on trial, he cannot truly sit in front of himself. Not only is such bilocation impossible, the impossibility is addressed in Article I, section 3, which speaks of a “President pro tempore,
in the absence of the Vice President.” The Vice President is effectively absent from the Senate’s presiding chair when he is on trial in the Senate.

As interesting as who would preside over the impeachment of a Vice President is the question of what would be an impeachable offense. The only two things a Vice President does is sit in the Senate Chamber and cast tie breaking votes.

It’s an inaccuracy to describe the Constitution as saying the VP shall preside over his own impeachment, which is the premise of the anti-absurdity counter-argument that the Constitution didn’t mean what it said (which it in fact didn’t say). Not saying something is not the same as implying it, just as the Constitution didn’t say that the VP must qualify to be President in order to be legitimate. As written, the office of VP was not an elected office but was one reserved for the second-place finisher in the race for the Presidency, a race between men who all were required to be eligible. But as political parties developed and the VP became an extension of the POTUS, and one running specifically for the office of VP, then the 12th amendment was needed to require what the Constitution was silent on. One could claim that the Constitution’s silence could not have legitimately meant that the VP didn’t have to fulfill the qualifications for the presidency since that would be a logical absurdity. Common sense must rule or the result is nonsense.http://h2ooflife.wordpress.com/2012/10/24/the-lost-truth-citizenship/http://h2ooflife.wordpress.com ~the source for lost citizenship truth

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